14 N.Y.S. 114 | N.Y. Sup. Ct. | 1891
About the 3d day of May, 1881, the defendants entered into an agreement in writing, of which the following is a copy:
“Memorandum of an agreement made and entered into this 30th day of April, 1881, by and between Evolin B. Bobertson, of the village of Mayville, Chautauqua county, Y. Y., of the first part, and M. Mattison, W. B. Martin, ■C. H. Johnson, Oren Stoddard, James Moon, W. Holt, A. C. Pickard, H. D. Stoddard, W. Yorthrop, Jrs, D. H. Matthews, John Yorthrop, A. M. Binehart, Jackson & Hollenbeck, W. H. White, Mark Jones, J. H. Wood, J. W. Broadhead, of the town of Busti, said county, of the second part, witnesseth: That, for and in consideration of the covenants hereinafter expressed, the said party of the first part hereby covenants and agrees, to and with the said parties of the second part, to put a stock of dry goods, groceries, hats, caps, boots and shoes, etc., in what is known as the ‘ John B. Bobertson Store Building,’ situate in Busti village; said stock to be at least of the value of three thousand dollars, to be replenished from time to time as it runs below the amount; said party of the first part to procure the services of John B. Bobertson to manage said store, and devote his time thereto to the interests of the business. The parties of the second part agree to indorse the paper of the said party of the first part to the amount of $2,000, which sum is to go into the business, and the parties of the second part are to have an interest at all times in the goods of said store to the amount of their indorsement, subject,however, to no liability except such indorsement. At the end of one year the party of the first part is to cause an invoice of the goods on hand to be taken in the presence, if required, of two of the parties of the second part, and the net profits of said business, including all commissions for buying hides, butter,*115 cheese, wool, and other products received by said manager, and after deducting insurance on goods, fuel, lights, additional clerk hire, freights, and other necessary expenses of the business, to be divided as follows: Two-thirds of said net profits to belong to the party of the first part in consideration of her capital and management of said business through said John R. Robertson, and the use of said store building, and the other one-third of said net profits are to be paid to the said parties of the second part, pro rata, in consideration pf their said indorsement, and their general interest in the business. It is further stipulated, by and between the parties, that, at any time previous to the expiration of one year, when a majority of the parties of the second part shall make a request in writing to the effect, the party of the first part shall cause an invoice of the stock of goods on hand to be taken in the presence of two of the parties of the second part, and if it be ascertained that the business is sustaining any considerable loss, and the said parties of the second part so demand, the party of the first part shall turn over sufficient amount of said goods to secure said parties of the second part against any liability on account of said indorsement, or relieve said parties of the second part from said indorsement, by causing said indorsed paper to be canceled. And it is further agreed by and between the parties that if, at the end of one year, it is ascertained that there has been a profit in said business, and the party of the first part so require, the provisions of this contract shall extend another year; but, if the party of the first part desire to continue said business without the aid of said indorsement, then this contract, from and after that date, becomes abrogated. Said parties to this contract are to do what they reasonably can to make said business a success. In witness whereof we have hereunto set our hands and seals this 29th day of April, 1891.
“Evolin B. Robertson. (l. s.)
“M. Mattison. (l. s.)
“W. B. Martin. (l. s.)
“O. H. Johnson. (l. s.)
“Oren Stoddard. (l. s.)
“James Moon. (l. s.)
“W. Holt. (l. s.)
“A. 0. Pickard. (l. s.)
“B. D. Bush. (l. s.)
“H. D. Stoddard. (l. s.)
“Wm. Northrop, Jr. " (l. s.) “D. H. Matthews. ■ (l. s.)
“John Northrop. (l. s.)
“(A. A. Stoddard.)
“[Mr. Stoddard’s name was not in the body of the agreement, but was at the end. It had been scratched over with a knife, and could be easily read, and was very distinct.)
“A. M. Rinehart. (l. s.)
“Jackson & Hollenbeck, (l. s.)
“Wm. H. White. (l. s.)
“A. W. Smith. (l. s.) .
“Mark Jones. • (l. s.)
“J. H. Wood. (l. s.)
“J. W. Broadhead. (l. s.)”
This action was commenced in June, 1882, to recover the balance of a bill of goods. Issue was joined, the action was referred, and the referee found for the plaintiffs. It appeared that the above agreement was made for the purpose of establishing and carrying on a store in the village of Busti, Chautauqua county. After considerable litigation, the court of appeals decided (116 N. T. 61, 22 N.. E. Rep. 398) that the parties to the agreement were-partners, reversing the same case in 40 Hun, 166. The referee’s third
Ansel A. Stoddard signed his name to the agreement, but?a day or two after requested its erasure, and was afterwards informed that it was erased. Stoddard never took part in carrying on the business, and the plaintiffs had no knowledge that he was a member of the firm, or had any interest in it. His name was never inserted in the body of the agreement. It was conceded on the trial that the defendant Addison E. Hollenbeck was not the Hollenbeck named in the agreement in the signature, “Jackson & Hollenbeck.” That in fact those signatures were made by Jane C. Jackson and Abbie E. Hollenbeck. Addison E. Hollenbeck was never a party to the contract. It was also agreed that the summons in this action was never served upon either Addison E. Hollenbeck or Abbie E. Hollenbeck. The defendants, among, other things, answered that Thomas Jackson, AbbieE. Hollenbeck, and Ansel A. Stoddard should be made parties defendant, and claimed non-joinder. The referee’s ninth finding is as follows: “That neither the summons nor
Two questions are presented by this appeal,—one as to whether Ansel A. Stoddard should have been made a party to the action. The case shows that after lie signed the instrument, but before its body was filled with names he expressed a wish not to become a party, which was so far acquiesced in that the signature was partially scratched out, and his name was never inserted in the body. He never in any of the dealings was treated as a party to the contract, and was not made defendant. Upon the facts appearing, no reason is seen why he should have been made a defendant.
The other question is the omission to make Abbie E. Hollenbeck a party defendant. Addison E. Hollenbeck was never a party to the contract. Abbie E. Hollenbeck was, the name used being.Jackson & Hollenbeck, but when the action was commenced the pleader mistakenly assumed that the signer was Addison E. Hollenbeck, who was made defendant. These facts appeared on the trial, and the referee allowed a correction of the name. Sections 723 and 1018 of the Code of Civil Procedure confer power upon the court or referee to amend summons or complaint in respect to parties. In the case at bar Abbie E. Hollenbeck was a party to the contract. The given name of a person who was not such was used by the plaintiffs. Upon the discovery of the mistake the referee allowed an amendment. Addison E. Hollenbeck had no concern or interest. He had a right to appear when sued, but in this case he was not served with process, but for some reason (not disclosed) his attorney interposed an answer, in which he pleads, among other things, the non-joinder of Abbie. Section 1932 of the Code of Civil Procedure, in the ease of joint liability, authorizes judgment in form to be entered against all the defendants, although part of them are not served with process; but, under the same section, an execution could not be collected against the individual property of Abbie, and could only be collected from the joint property. In the present case the referee had power to correct the name; it was so corrected; judgment in form was entered against her, as well as the other defendants. If for any reason the judgment against her is improper, she would be the party to seek its correction. The plea of non-joinder is answered by the fact that she is included in the judgment with the rest. The seventh finding shows that Abbie E. was a party to the instrument. Ho exception was taken to that finding by the defendants. The conclusion of law, that the name Addison E. Hollenbeck be changed to Abbie E. Hollenbeck, was not excepted to. The defendants’ exception to all the findings was not sufficiently specific to raise this point, or any other. Schounmaker v. Bonnie, 119 N. Y. 565, 23 N. E. Rep. 1106; Murray v. Usher, 117 N. Y. 542, 23 N. E. Rep. 564: Smedis v. Railroad Co., 88 N. Y. 13; Bosley v. Machine Co., 123 N. Y. 550, 25 N. E. Rep. 990. It follows "that the judgment must be affirmed. All concur.